IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

January 26, 2011

IN RE I.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,v.M.M. ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. No. JD227137)

The opinion of the court was delivered by: Raye, P. J.

In re I.M.

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

L.C. (mother) and M.M. (father) appeal from the juvenile court's orders denying mother's petition under Welfare and Institutions Code section 388*fn1 and terminating her parental rights as to two-year-old minor I.M. Mother contends the court erred by denying her section 388 petition and by finding that the beneficial parental relationship exception to adoption did not apply. (§ 366.26, subd. (c)(1)(B)(i).) Father, whose parental rights were also terminated, supports mother's contentions but does not contest the order terminating his parental rights. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 11, 2008, the Sacramento County Department of Health and Human Services (Department) filed a petition under section 300, subdivisions (b) and (j) as to the newborn I.M., alleging: (1) Father and mother had a lengthy history of domestic violence in the presence of I.M.'s six half siblings and one sibling; there was a no-contact order between father and the half siblings; father was at the mother's residence in violation of the order on March 6, 2008, and said he did not "give a fuck about Court Orders"; and (2) The minor's half siblings (except for 17-year-old L.A.) and sibling then living with mother were detained on January 11, 2008, based in part on the parents' ongoing domestic violence.*fn2

The detention report noted that I.M. was detained at birth. Three of I.M.'s half siblings and the sibling were adjudicated dependents of the juvenile court on January 16, 2008; two other half siblings were residing with their father in Minnesota; the oldest half sibling (L.A.) was not detained. Mother had drug tested, but the results were not yet in. Mother had a misdemeanor conviction for passing a fraudulent check and was on informal probation; father was a convicted felon whose crimes included robbery and assault with a deadly weapon.

At the initial hearing on March 14, 2008, the minor was ordered detained.

According to the report, mother said she had been unable to get a restraining order against father, an alcoholic and drug addict who refused treatment. She did not believe he had violated a no-contact order on March 6, 2008, however, because he did not come into her home.

Mother's counselor, John Kress, who had already completed a round of sessions with her in the half siblings' cases, provisionally diagnosed bipolar syndrome and posttraumatic stress disorder; he also referred mother for psychological and medication evaluations. She was impulsive, emotionally reactive with anger issues from years of abuse, and the victim of domestic violence from multiple partners. She did not have "the best judgment." Although she denied drug abuse, Kress suspected drugs or alcohol. She also had a history of seizures.

Psychologist Jayson Wilkenfield, who conducted a psychological evaluation of mother, determined that her domestic violence history with father went back to August 2007; she also had prior episodes dating back to April 2005, including one in June 2007 that led to charges of felony assault with a deadly weapon and corporal injury to a spouse or cohabitant. She had failed to follow through on referrals after the 2005 incident. She denied recent drug or alcohol use. Her psychological insight was "notably superficial."

Dr. Wilkenfield's primary diagnosis was bipolar disorder not otherwise specified, with borderline personality traits and narcissistic personality features. Believing she would benefit from medications for mood stabilization and impulse control, he referred her for a psychiatric medication evaluation. (Since then, she had consulted a psychiatrist, but his recommendation was not yet known.) Dr. Wilkenfield recommended anger management classes, domestic violence education, counseling to improve her coping skills and choice of partners, and codependency group counseling.

Despite these recommendations, however, Dr. Wilkenfield doubted whether mother could benefit from further services. She had a history of escaping and avoiding consequences. She was impulsive and manic. She did not listen to advice, instead wanting to do things her way and seeing herself as a victim.

In the ongoing case involving I.M.'s half siblings and sibling, the social worker had recommended terminating services to both parents because mother had not benefited from them and father had not participated in them. The minor was doing well in her foster placement.

At the jurisdiction/disposition hearing on June 17, 2008, the juvenile court sustained the section 300 petition and ordered out-of-home placement with reunification services for both parents.

I.M. was thriving in her foster placement and was appropriately bonded with her caregiver. She was a happy child who loved attention.

Father had not participated in services and had tested positive for alcohol and drugs. Mother had tested negative for drugs, but drank alcohol with father on September 15, 2008, at her residence.

Mother had completed parenting classes, but not codependency classes, and was sporadic in her attendance at counseling. She had completed a domestic violence course with Women Escaping a Violent Environment (WEAVE) in February 2008 in the prior case, but still blamed others rather than herself for her situation. She had been rereferred to WEAVE in this case, but had not yet begun the program. She continued to engage in risky behaviors with father; a domestic violence episode between them on August 23, 2008, which she did not report to the Department, had led to jail time for both.

As of October 7, 2008, counselor Kress doubted whether further counseling would help mother: despite the shock she experienced in July when her other children were placed for adoption and her recognition that she had made poor choices in relationships, her behavior had not changed. Psychiatric medications had not been recommended for her. Psychologist Wilkenfield opined that no services could address mother's "deeply rooted psychological disorder" in the next six to 18 months.

On September 15, 2008, after becoming intoxicated from drinking with father present in the home, mother was arrested for reportedly chasing after her teenage son L.A. with a knife.

So long as mother continued her relationship with father and the domestic violence that was a part of it, she could not hope to reunify with I.M. Her progress in services had been minimal. She had been consistently dishonest about her relationship with father. Her mental health status and psychological makeup prevented her from providing safety for I.M.

At the permanency hearing on April 29, 2009, the juvenile court found that mother had received reasonable services and had failed to benefit from them. The court terminated her services (as well as father's).

The selection and implementation report, filed August 11, 2009, recommended terminating the parental rights of both parents and setting the matter for adoption. Father was currently incarcerated. Mother visited I.M. regularly, sometimes bringing two of her siblings or half siblings; the visits went well. I.M. continued to thrive in her placement and her current caregivers were interested in adopting her, but they already had seven adopted children in the home and were seeking to adopt another besides I.M.; therefore the Department was also assessing relatives for placement.

On January 5, 2010, mother filed a section 388 petition seeking the reopening of reunification services. The petition alleged that mother had completed a new domestic violence program with WEAVE. She also visited I.M. consistently twice a week, and a "[p]rivate social worker's report" indicated a strong bond between mother and child. Attached were two exhibits: (1) a letter from WEAVE verifying mother's attendance in a counseling program from April through October 2009, and (2) a letter from "private contract clinical social worker" Cheryle Roberts describing her observation of a visit between mother and I.M. on December 28, 2009, and opining based on that visit that "there does seem to be an attachment and bond" between them.

In mother's pretrial brief for the scheduled section 366.26 hearing, she raised the beneficial parental relationship exception to adoption.*fn4 She indicated she would call Roberts and Michele Donahue, the social worker who supervised mother's visits, as witnesses. She also attached the WEAVE attendance verification and Roberts's letter, which she called a "[b]onding report."

At the consolidated section 366.26/section 388 hearing, which began on February 16, 2010, Roberts testified that she had observed visits between mother and I.M. on December 28, 2009, and January 19, 2010, totaling three and a half hours. Based on Roberts's experience and training as a bonding assessor, she concluded that these visits showed a bond between mother and child that it "may be" detrimental to sever. Roberts acknowledged she had not observed I.M. interacting with her foster parents or anyone else, had not read the selection and implementation report or any other documentation, and had not done a formal bonding assessment.

Michele Donahue testified that she had supervised 20 visits between mother and I.M., which went well. I.M. was generally a happy child, and her interactions with her foster parents were just as positive as those with mother.

Mother testified that she visited I.M. for two hours a week (sometimes with I.M.'s 16-year-old half sister), mother and I.M. were closely bonded, and I.M. was also bonded with the half sister. Mother had completed a WEAVE counseling program that ran from April to October 2009, had taken anger management classes, and had received "spiritual guidance counseling" at several different churches three or four times a month. She had also attended community college since her reunification services were terminated. She felt it would be in I.M.'s best interest to be with her because I.M. was her daughter and she should be with her biological family.

Mother admitted that after the altercation with her son on September 15, 2008, she pled no contest to exhibiting a deadly weapon; she claimed, however, that he had broken her nose. He had lived with her since he turned 18 and aged out of foster care, and was still doing so.

Following argument, the juvenile court found and ruled as follows:

As to the termination of parental rights, because adoption is the preferred option absent exceptional circumstances, mother had the burden to show by a preponderance of the evidence that the beneficial parental relationship exception applied. She had not met that burden. She had shown a relationship with the minor, but not that it outweighed the value of permanent placement for the minor. There was no evidence that mother's bonding with the minor was deeper or more substantial than that which the minor had with "any and all adults that she was presented with."

As to the section 388 petition, mother had not shown by a preponderance of the evidence that changed circumstances existed or that the proposed modification of the court's orders was in the minor's best interest.

The original issue leading to the minor's removal, the chronic domestic violence in mother's home, still existed. Mother said when the minor was removed that she had no control over what father did, and since then she had failed to be straightforward with the Department about her relations with him. Mother was arrested in August 2009 on charges that included domestic violence. She pled no contest in September 2009 to a violation of Penal Code section 417 arising out of the altercation with her son, a charge which entailed brandishing, assault, and threatening; nevertheless, her son, who allegedly broke her nose in the incident, now lived with her. Mother had claimed that her counseling had taught her how to keep violence out of her home, but the evidence belied that claim.

Mother completed only 10 of her originally scheduled 20 counseling sessions, and her counselor indicated that additional counseling would not be beneficial. Dr. Wilkenfield similarly opined that her psychological problems were too deep-rooted to be curable by any services the Department could provide within 18 months. Mother did not address her codependency problem through services. Her completion of parenting classes occurred before reunification services were terminated, and therefore did not count as a changed circumstance. Although she had completed a WEAVE program since the termination of services, she had also completed one before the minor was removed, which apparently did not benefit her. The new program had had little, if any, effect on her interactions with others; thus it also was not probative of changed circumstances -- nor was the counseling she had received through the church.

Because mother had not shown changed circumstances, the court would deny the section 388 petition.

The juvenile court thereafter entered written orders denying the section 388 petition and terminating parental rights as to both mother and father.

DISCUSSION I The Section 388 Petition

Mother and father contend the order terminating parental rights must be reversed because the juvenile court should have granted mother's section 388 petition. We disagree.

A petition to modify a juvenile court order under section 388 must allege facts showing that new evidence or changed circumstances exist, and that changing the order will serve the minor's best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) The petitioner has the burden of proof on both points by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1).) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)

To decide whether mother met her burden, the juvenile court had to consider such factors as the seriousness of the problem that led to the dependency, and the reason for the problem's continuation; the degree to which the problem may be and has been removed or ameliorated; and the strength of the relative bonds between the dependent children and their parents and caretakers. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229; In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)

Where a section 388 petition has been denied after an evidentiary hearing, we review for abuse of discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 866.) This means that we reverse only if under all the evidence (including reasonable inferences from the evidence), viewed most favorably to the ruling, no reasonable judge could have made that ruling. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).) Where the evidence conflicts, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529 (I.W.).)

The juvenile court carefully considered all the relevant factors and explained clearly why none of them aided mother. The problem leading to the removal of I.M. from mother's custody -- the long history of domestic violence in which mother had engaged with father and with other partners before him -- was extremely serious. Mother not only did not remove or ameliorate this problem, but continued to see and to become embroiled with father; she had also engaged in domestic violence with her son, who still lived with her. In light of this evidence, mother's participation in services on her own after the termination of court-provided services did not change the picture. The experts who had counseled or evaluated her found her psychological problems so deep-rooted that no services could remove them within the time frame of a dependency proceeding. Finally, so far as the evidence showed, mother's bond with the minor did not differ in kind, or even in degree, from the bond the minor had established with the foster parents (or would establish with any other adult she encountered).

Arguing to the contrary, mother simply recites her own evidence and asserts in effect that the juvenile court should have accepted it, while disregarding any other evidence. Father's supporting brief does likewise. This is insufficient to show that no reasonable judge would have made the order the court made or that a ruling in mother's favor was compelled as a matter of law, which is what the parents must show on appeal to win reversal. (I.W., supra, 180 Cal.App.4th at pp. 1527-1529; Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

II The Order Terminating Mother's Parental Rights

Mother contends the juvenile court erred by finding she had not established the beneficial parental relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) The court did not err.

At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998; In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.); Cal. Rules of Court, former rule 5.725(d)(3).) We uphold a juvenile court's ruling declining to find such an exception if the ruling is supported by substantial evidence. (Zachary G., supra, 77 Cal.App.4th at p. 809.)

To prove that the beneficial parent-child relationship exception applies, the parent must show that he or she "ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) It is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) There must be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)

"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

Where a parent attacks a juvenile court order on the ground of insufficient evidence, we apply the substantial evidence standard of review, under which we view the evidence most favorably to the order and do not reweigh the evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

The evidence here, viewed most favorably to the judgment, showed only that mother had good visits and interacted well with I.M., a happy two-year-old who had never lived with her and who interacted just as well with any and all other adults, including her foster parents. Even mother's strongest witness on this issue, social worker Roberts, would go only so far as to speculate that severing the bond between mother and I.M. "may be" detrimental to I.M. -- and did so without having observed I.M.'s bonding with her foster parents. This evidence fell far short of showing that terminating mother's parental rights would actually be detrimental to I.M., which was what mother needed to show.*fn5 (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

But even a strong and positive parent-child attachment does not preclude the termination of parental rights if the minor looks to the prospective adoptive parents to meet her needs. (Zachary G., supra, 77 Cal.App.4th at p. 811.) The Department's reports clearly showed that I.M. did so.

Mother mainly relies on In re S.B. (2008) 164 Cal.App.4th 289, where the appellate court found the father had proved the beneficial parent-child relationship exception to adoption. But there, the child looked to the father as much as to the foster parents to meet her needs. (Id. at pp. 298-301.) Here, that is not the case.

Mother has not shown the juvenile court erred by terminating her parental rights.

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